Brett Kavanaugh’s Damaging, Revealing Partisan Bitterness

The damage to the legitimacy of the Supreme Court and the Senate confirmation process is incalculable, whether Brett Kavanaugh is confirmed or not.

Photograph by Michael Reynolds / AFP / Getty

A Senate confirmation hearing for a Supreme Court nominee is a political affair, not a court proceeding. But when the topic is alleged criminal wrongdoing by the nominee, the distinction can start to blur. We, the public, may feel more like a jury considering evidence than a boss considering an applicant for an important job. Thursday’s hearing, with testimony by Brett Kavanaugh and Christine Blasey Ford, was supposedly intended to reveal whether there was truth to Ford’s allegation that Kavanaugh attempted to rape her, by providing testimony from each of them under oath. But the Senate Judiciary Committee’s focus on whether Kavanaugh did what he was accused of gave way to partisan recriminations about whether the process for considering that question was fair. The damage to the legitimacy of the Supreme Court and the Senate confirmation process is incalculable, whether or not Kavanaugh is confirmed.

Democratic senators returned obsessively to the fact that Ford had requested an F.B.I. investigation into her allegation before she testified, but none was conducted. With President Trump’s attacks on the F.B.I. as a backdrop, the Democrats claimed that, in contrast to the inevitable partisanship of the Republican-controlled Senate Judiciary Committee, an F.B.I. investigation would be professional, nonpartisan, and trustworthy. The Republicans more than matched their outrage by claiming that the opportunity for an F.B.I. investigation had passed because of Democratic malfeasance during the weeks when Senator Dianne Feinstein, a Democrat of California, knew of Ford’s allegation but did not inform other senators. (Feinstein says that she was respecting Ford’s request to keep it confidential.) Both parties claimed that the process in which they were taking part was deeply unfair, even disgraceful. In an extended outburst, Senator Lindsey Graham, a Republican of South Carolina, described both Kavanaugh and Ford as victims, saying, to Kavanaugh, “You’re looking for a fair process? You came to the wrong town at the wrong time, my friend.” Republicans now look ready to confirm him, not because he was more credible than Ford but as a protest against an unfair process.

Senator Dick Durbin, a Democrat of Illinois, repeatedly pressed Kavanaugh on whether he would favor an F.B.I. investigation, challenging him to speak directly to the White House counsel, Don McGahn, who was seated in the front of the room. “Ask him to suspend this hearing and nomination process until the F.B.I. completes its investigation of the charges made by Dr. Ford and others, and goes to bring the witnesses forward, and provides that information to this hearing,” Durbin said. Kavanaugh declined to say that he would support an F.B.I. investigation, without quite saying that he wouldn’t. “I welcome whatever the committee wants to do, because I’m telling the truth,” he told Durbin.” In a less measured moment, he exclaimed, “I wanted a hearing last week!”

Senator Richard Blumenthal, a Democrat of Connecticut, said to Kavanaugh, “The core of why we’re here today, really, is credibility”—whether Ford’s story or Kavanaugh’s denial of it was more believable as the truth. But another kind of credibility was also at stake for Kavanaugh—that of a judge, whose legitimacy depends on our perception of him as rational, fair, calm, and nonpartisan. In this respect, the juxtaposition of Ford and of Kavanaugh was striking. It was Ford, by far, who had the more judicial demeanor. Kavanaugh often appeared to be having a petulant and distracted teen-age meltdown, interrupting the Democratic senators and rarely attempting to answer their questions directly. Ford appeared nervous but thoughtful, and earnestly focussed on doing her best to “be helpful,” as she put it at one point. His shouting filled the chamber, while she had to lean into a microphone to be heard. The even-tempered and dignified judicial persona that Kavanaugh has worked so hard to cultivate fell away to reveal a sneering and volatile boy with his arms crossed, furious not to be getting his way.

If there is a red flag here, it is not only Kavanaugh’s failure to maintain composure during a tense and extraordinary hearing. It is, rather, the risk that the process itself, which Democrats and Republicans seem to agree has been a disaster, has been so damaging to Kavanaugh’s psyche that partisan bitterness and rage will shape his temperament and his orientation to judicial work for a lifetime. It is unfortunate, if not tragic, that perhaps the most consequential unfairness of the process may be that his reaction to it has left him unfit to serve as a Justice on the Supreme Court. But, then again, Kavanaugh the political operative may have understood, far better than we did, that his abandonment of judicial performance was precisely the kind of gripping reality television that would lock in the support of his President and his base.

Jeannie Suk Gersen is a contributing writer to The New Yorker and a professor at Harvard Law School.